Safe Harbour out .. EU-US Privacy Shield in

EU Commission and United States agree on new framework for transatlantic data flows: EU-US Privacy Shield

On Tuesday 2nd February an agreement was reached after several months of negotiations between Europe and the USA. This has come about following the Schrems case and the European Court of Justice ruling on 6th of October 2015 which declared the old so called ‘Safe Harbour’ framework invalid. The Safe Harbour expiry deadline was 31st January.

The EU-US Privacy Shield

Some of the key elements of the new framework are listed below:

Strong obligations on companies handling Europeans’ personal data and robust enforcement: U.S. companies wishing to import personal data from Europe will need to commit to robust obligations on how personal data is processed and individual rights are guaranteed. The Department of Commerce will monitor that companies publish their commitments, which makes them enforceable under U.S. law by the US. Federal Trade Commission. In addition, any company handling human resources data from Europe has to commit to comply with decisions by European DPAs.

Clear safeguards and transparency obligations on U.S. government access: For the first time, the US has given the EU written assurances that the access of public authorities for law enforcement and national security will be subject to clear limitations, safeguards and oversight mechanisms. The U.S. has ruled out indiscriminate mass surveillance on the personal data transferred to the US under the new arrangement. To regularly monitor the functioning of the arrangement there will be an annual joint review. The European Commission and the U.S. Department of Commerce will conduct the review and invite national intelligence experts from the U.S. and European Data Protection Authorities to it.

Effective protection of EU individuals’ rights with several redress possibilities: Any individual who considers that their data has been misused under the new arrangement will have several redress possibilities. Companies have deadlines to reply to complaints. European DPAs can refer complaints to the Department of Commerce and the Federal Trade Commission. In addition, Alternative Dispute resolution will be free of charge. For complaints on possible access by national intelligence authorities, a new Ombudsperson will be created.

EU-US Privacy Shield Next Steps

Vice-President Ansip and Commissioner Jourová have been mandated to prepare a draft “adequacy decision” in the coming weeks, which could then be adopted by the College of Commissioners after obtaining the advice of the Article 29 Working Party and after consulting a committee composed of representatives of the EU Member States. In the meantime, the U.S. side will make the necessary preparations to put in place the new framework, monitoring mechanisms and new Ombudsperson.